**Exhibit 10.31**

 

**FIFTH AMENDMENT TO CREDIT AGREEMENT**

 

**THIS FIFTH AMENDMENT TO CREDIT AGREEMENT** (the “Fifth Amendment”) dated as of March 19, 2004,by and among BEARINGPOINT, INC. (formerly known as KPMG Consulting, Inc.), a Delaware corporation (the “Borrower”), the Guarantors, the Banks, and PNC BANK, NATIONAL ASSOCIATION, as Administrative Agent. 

 

W I T N E S S E T H: 

 

WHEREAS, the parties hereto are parties to that certain Credit Agreementdated as of May 29, 2002 (as previously and hereafter amended, supplemented, restated or modified, the “Credit Agreement”) by and among the Borrower, the Banks, the Guarantors, and PNC Bank, National Association, as AdministrativeAgent, and desire to further amend the terms thereof as set forth herein; and 

 

WHEREAS, the parties to the Credit Agreement desire to amend the Credit Agreement as set forth herein; and 

 

WHEREAS, defined terms used herein unless otherwise defined herein shall have the meanings ascribed to them in the Credit Agreement. 

 

NOW, THEREFORE, the parties hereto, in consideration of their mutualcovenants and agreements hereinafter set forth and intending to be legally bound hereby, covenant and agree as follows: 

 

 

The parties hereby amend the Credit Agreement as follows: 

 

 

(i) Existing Definitions (Section 1.1). 

 

The definition of “EBITDA” contained in Section 1.1 of the Credit Agreement is hereby amended and restated to read asfollows: 

 

“EBITDA for any Personduring any period of determination shall mean the net income of such Person, 

 

plus 

 

(A) thesum of the following items to the extent deducted in arriving at such net income: (i) depreciation, (ii) amortization, (iii) interest expense, (iv) income tax expense, (v) for computations which include the quarter ending September 30, 2003 and/orDecember 31, 2003, the Lease Termination Charges (in an amount not to exceed $75,000,000 in the aggregate for both such quarters), (vi) non-cash compensation expense recorded in connection with the issuance by 

 

the Borrower of shares of its common stock to key employees of acquired businesses pursuant to pre-acquisition commitments made by the Borrower to issue suchshares to such employees in an amount not to exceed $3,500,000 during any fiscal quarter, (vii) any non-cash expense recorded in connection with the issuance of stock options to employees (in the event that GAAP should require that such expenses bededucted from net income), and (viii) the lesser of (a) the Fourth Quarter 2003 Non-Cash Goodwill Impairment Charge, or (b) $140,000,000. 

 

minus 

 

(B) for computations including the quarter ended December 31, 2003 or any subsequent quarters, the positive excess of cash rental paymentsover rental expense. 

 

(ii) **NewDefinitions (Section 1.1).**

 

Thefollowing new definitions are hereby added to Section 1.1: 

 

“Fourth Quarter 2003 Non-Cash Goodwill Impairment Charge shall mean a one-time non-cash charge to goodwill recorded by the Loan Parties in the quarter ending December 31, 2003 (and not in any prior orsubsequent quarter).” 

 

B. **Annual FinancialStatements (Section 7.3.2).**

 

The firstsentence of Section 7.3.2 [Annual Financial Statements] is hereby amended and restated to read as follows: 

 

“The following financial statements and related documents (described in clauses (1) and (2) below (collectively the Annual Financial Reports”)as soon as available and in any event within the time periods specified in clauses (A) or (B) below, as applicable (1) financial statements of the Borrower consisting of a consolidated balance sheet as of the end of such fiscal year, and relatedconsolidated statements of income, stockholders’ equity and cash flows for the fiscal year then ended, all inreasonable detail and setting forth in comparative form the financial statements as of the end of and for the preceding fiscal year, and certified by independent certified public accountants of nationally recognized standing satisfactory to theAdministrative Agent and (2) an unaudited consolidated income statement for the Loan Parties (excluding all Subsidiaries of the Borrower which are not Loan Parties) for the fiscal year then ended, such Annual Financial Reports shall be due (A) inthe case of the Annual Financial Reports for Borrower’s fiscal year ended December 31, 2003, one hundred and five (105) days after such fiscal year end, and (B) in the case of the Annual Financial Reports for each fiscal year of the Borrowerended after December 31, 2003, ninety (90) days after the such fiscal year end (it is acknowledged that the annual Compliance Certificate and list of insurance described in Sections 7.3.3 and 7.3.4 shall be delivered concurrently with such AnnualFinancial Reports (as provided in such Sections).” 

 

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 2.Representations, Warranties and covenants. 
 

The Loan Parties hereby represent, warrant and covenant to the Banks as follows: 

 

(a) The representations and warranties of Loan Partiescontained in the Credit Agreement are true and correct on and as of the date hereof with the same force and effect as though made by the Loan Parties on such date, except to the extent that any such representation or warranty expressly relatessolely to a previous date in which case such representations and warranties are true and correct as of such date; and 

 

(b) The Loan Parties are in compliance with all terms, conditions, provisions, and covenants contained in the Credit Agreement; and theexecution, delivery, and performance of this Fifth Amendment have been duly authorized by all necessary corporate action, require no governmental approval, and will not contravene, conflict with, nor result in the breach of any law, charter,articles, or certificate of incorporation, bylaws, or agreement governing or binding upon the Loan Parties or any of their property; and no Event of Default or Potential Default has occurred and is continuing or would result from the making of thisFifth Amendment. 

 
2.**Conditions to Effectiveness.**
 
 A.**Conditions to Effectiveness**
 

This Fifth Amendment shall be effective upon completion of the following conditions precedent which shall be the date of this Amendment:

 

(i) Execution. The Required Banks, theAdministrative Agent, the Borrower and the other Loan Parties shall have executed and delivered to the Administrative Agent signature pages hereto by counterpart or otherwise. 

 

(ii) Fee. The Borrower shall pay to the Agent for the benefit of each Bank which executes and delivers thesignature page to the Agent’s (or its counsel as instructed by the Agent) by 3:00 pm (EST) on March 19, 2004 a fee of .10% times the amount of such Bank’s Commitment. 

 

(iii) Opinion. Counsel for the Loan Parties (which may be David R. Schwiesow, Deputy General Counselof the Borrower) shall have delivered an opinion in a form acceptable to the Administrative Agent confirming the authorization, execution, delivery and enforceability of this Amendment by or against the Loan Parties. 

 
3.**Amendment**.
 

Any reference to the Credit Agreement or other Loan Documents in any document, instrument, or agreement shall hereafter mean and includethe Credit Agreement or such Loan Document, including exhibits thereto, as amended hereby. In the event of any irreconcilable inconsistency between the terms or provisions hereof and the terms or provisions 

 

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of the Credit Agreement or such Loan Document, including such exhibits, the terms and provisions hereof shall control. 

 
4.**Force and Effect**.
 

The Loan Parties reconfirm, restate, and ratify the Credit Agreement and all other documents executed in connection therewith and the LoanParties confirm that all such documents have remained in full force and effect since the date of their execution except to the extent that the Credit Agreement is expressly modified by this Fifth amendment. 

 

**Governing Law.**

 

This Fifth Amendment shall be deemed to be a contract under the laws of the State of New York and for allpurposes shall be governed by and construed and enforced in accordance with the internal laws of the State of New York without regard to its conflict of laws principles. 

 

**Counterparts.**

 

This Fifth Amendment may be signed in any number of counterparts each of which shall be deemed an original, but all of which togethershall constitute one and the same instrument. 

 

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**[SIGNATURE PAGE 1 OF 15 TO FIFTH AMENDMENT TO CREDIT AGREEMENT]**

 

IN WITNESS WHEREOF, the parties hereto, by their officers thereunto duly authorized, haveexecuted this Agreement as of the day and year first above written. 

 

BORROWER:

 
BEARINGPOINT, INC. (formerly known as KPMG Consulting, Inc.)By: /s/ Patrick H. Kinzler (SEAL)      Name: Patrick H. Kinzler    Title: Treasurer  
 

GUARANTORS:

 
BEARINGPOINT, LLCBy: /s/ Patrick H. Kinzler (SEAL)      Name: Patrick H. Kinzler    Title: Treasurer  
 
BEARINGPOINT ISRAEL, LLCBy: /s/ Patrick H. Kinzler (SEAL)      Name: Patrick H. Kinzler    Title: Treasurer  
 
SOFTLINE ACQUISITION CORP.By: /s/ Patrick H. Kinzler (SEAL)      Name: Patrick H. Kinzler    Title: Treasurer  
 
BEARINGPOINT GLOBAL OPERATIONS, INC.By: /s/ Patrick H. Kinzler (SEAL)      Name: Patrick H. Kinzler    Title: Treasurer  
 

**[SIGNATURE PAGE 2 OF 15 TO FIFTH AMENDMENT TO CREDIT AGREEMENT]**

 
SOFTLINE CONSULTING & INTEGRATORS, INC.By: /s/ Patrick H. Kinzler (SEAL)      Name: Patrick H. Kinzler    Title: Treasurer  
 
I2 MIDATLANTIC LLCBy: /s/ Patrick H. Kinzler (SEAL)      Name: Patrick H. Kinzler    Title: Treasurer  
 
I2 NORTHWEST LLCBy: /s/ Patrick H. Kinzler (SEAL)      Name: Patrick H. Kinzler    Title: Treasurer  
 
OAD ACQUISITION CORP.By: /s/ Patrick H. Kinzler (SEAL)      Name: Patrick H. Kinzler    Title: Treasurer  
 
BEARINGPOINT TECHNOLOGY PROCUREMENT SERVICES, LLCBy: /s/ Patrick H. Kinzler (SEAL)      Name: Patrick H. Kinzler    Title: Treasurer  
 

**[SIGNATURE PAGE 3 OF 15 TO FIFTH AMENDMENT TO CREDIT AGREEMENT]**

 
OAD GROUP, INC.By: /s/ Patrick H. Kinzler (SEAL)      Name: Patrick H. Kinzler    Title: Treasurer  
 
METRIUS, INC.By: /s/ Patrick H. Kinzler (SEAL)      Name: Patrick H. Kinzler    Title: Treasurer  
 
PEATMARWICK, INC.By: /s/ Patrick H. Kinzler (SEAL)      Name: Patrick H. Kinzler    Title: Treasurer  
 
BEARINGPOINT ENTERPRISE HOLDINGS, LLCBy: /s/ Patrick H. Kinzler (SEAL)      Name: Patrick H. Kinzler    Title: Treasurer  
 
BEARINGPOINT GLOBAL DE, LLCBy: /s/ Patrick H. Kinzler (SEAL)      Name: Patrick H. Kinzler    Title: Treasurer  
 
BEARINGPOINT INTERNATIONAL, INC.By: /s/ Patrick H. Kinzler (SEAL)      Name: Patrick H. Kinzler    Title: Treasurer  
 

**[SIGNATURE PAGE 4 OF 15 TO FIFTH AMENDMENT TO CREDIT AGREEMENT]**

 
BEARINGPOINT SOUTH PACIFIC, LLCBy: /s/ Patrick H. Kinzler (SEAL)      Name: Patrick H. Kinzler    Title: Treasurer  
 
BEARINGPOINT AMERICAS, INC.By: /s/ Patrick H. Kinzler (SEAL)      Name: Patrick H. Kinzler    Title: Treasurer  
 
BEARINGPOINT BG, LLCBy: /s/ Patrick H. Kinzler (SEAL)      Name: Patrick H. Kinzler    Title: Treasurer  
 
PELOTON HOLDINGS, L.L.C.By: /s/ Patrick H. Kinzler (SEAL)      Name: Patrick H. Kinzler    Title: Treasurer  
 

**[SIGNATURE PAGE 5 OF 15 TO FIFTH AMENDMENT TO CREDIT AGREEMENT]**

 
BEARINGPOINT EUROPEAN HOLDINGS, LLCBy: /s/ Patrick H. Kinzler (SEAL)      Name: Patrick H. Kinzler    Title: Treasurer  
 
BEARINGPOINT SOUTHEAST ASIA, LLCBy: /s/ Patrick H. Kinzler (SEAL)      Name: Patrick H. Kinzler    Title: Treasurer  
 
BEARINGPOINT RUSSIA, LLCBy: /s/ Patrick H. Kinzler (SEAL)      Name: Patrick H. Kinzler    Title: Treasurer  
 
BEARINGPOINT USA, INC.By: /s/ Patrick H. Kinzler (SEAL)      Name: Patrick H. Kinzler    Title: Treasurer  
 
BEARINGPOINT PUERTO RICO, LLCBy: /s/ Patrick H. Kinzler (SEAL)      Name: Patrick H. Kinzler    Title: Treasurer  
 
BEARINGPOINT INTERNATIONAL I, INC.By: /s/ Patrick H. Kinzler (SEAL)      Name: Patrick H. Kinzler    Title: Treasurer  
 
BEARINGPOINT INTERNATIONAL II, INC.By: /s/ Patrick H. Kinzler (SEAL)      Name: Patrick H. Kinzler    Title: Treasurer  
 

**[SIGNATURE PAGE 6 OF 15 TO FIFTH AMENDMENT TO CREDIT AGREEMENT]**

 

PNC BANK, NATIONAL ASSOCIATION,

individuallyand as Administrative Agent
By: /s/ Illegible  
Title:
 
Vice President

 

**[SIGNATURE PAGE 7 OF 15 TO FIFTH AMENDMENT TO CREDIT AGREEMENT]**

 

JPMORGAN CHASE BANK

individually and as Documentation Agent
By: /s/ T. David Short    T. David ShortTitle: Vice President
 

**[SIGNATURE PAGE 8 OF 15 TO FIFTH AMENDMENT TO CREDIT AGREEMENT]**

 

BARCLAYS BANK PLC,

individually and as Syndication Agent
  
/s/ Nicholas Bell
  
By:
 
Nicholas Bell

Title:
 
Director

 

**[SIGNATURE PAGE 9 OF 15 TO FIFTH AMENDMENT TO CREDIT AGREEMENT]**

 

SOCIÉTÉ GÉNÉRALE
By: /s/ DAVID GRANT    DAVID GRANTTitle: Managing Director
 

**[SIGNATURE PAGE 10 OF 15 TO FIFTH AMENDMENT TO CREDIT AGREEMENT]**

 

SUNTRUST BANK,

individually and as the Co-Agent
By: /s/ Illegible  
Title:
 AVP
 

**[SIGNATURE PAGE 11 OF 15 TO FIFTH AMENDMENT TO CREDIT AGREEMENT]**

 
BANK OF AMERICA, N.A., individually and as Documentation AgentBy: /s/ Robert Mauriello    Robert Mauriello
Title:
 Principal
 

**[SIGNATURE PAGE 12 OF 15 TO FIFTH AMENDMENT TO CREDIT AGREEMENT]**

 
THE NORTHERN TRUST COMPANYBy: /s/ ERIC DYBING    ERIC DYBINGTitle: 
SECOND VICE PRESIDENT

THE NORTHERN TRUSTCOMPANY

 

**[SIGNATURE PAGE 13 OF 15 TO FIFTH AMENDMENT TO CREDIT AGREEMENT]**

 
WESTPAC BANKING CORPORATIONBy: /s/ Richard Batten  Title: Richard Batten, Assistant Vice President
 

**[SIGNATURE PAGE 14 OF 15 TO FIFTH AMENDMENT TO CREDIT AGREEMENT]**

 
MELLON BANK, N.A.By: /s/ J. Wade Bell    J. Wade BellTitle: Vice President
 

**[SIGNATURE PAGE 15 OF 15 TO FIFTH AMENDMENT TO CREDIT AGREEMENT]**

 
CITIBANK, N.A., individually and as Documentation AgentBy: /s/ HUGO ARIAS    HUGO ARIASTitle: 
Vice President

388 Greenwich St./23rd Fl.

New York, NY 10013

Tel: 212-816-5390